*1 782 Derby
Mary appellant, v. Frank N. K. appel Conrad, lee s. Blanche 433 523 86-360. No. n Cüllanybf Gullan&'Cullan, VirginiaL.- :?Dáhi'élF. Gillian and ‘ '' n ' n ' n v -'k-, \ N fdrappelláxlti ..Daniel, Schneider,, ,Kennedy, P. L. ..Chesir.e James Holland, DeLacy&Svoboda, for appelieg^Cpjirafl.i!rfcf u/t,n, E'.Edward(3.fWáriñ-and MitchellV;bf;GfbsS'''Wel‘chV Lyhh A. '' VmárdxyKáüffman&Day,P.C.fforappelfeeDérbyí Hastings, White,” Capórale,' Bóslaugh, 'C.í\ Shan^haix, (3r cjh , J.. J .... Fahrnbru und an?) r,iPEÍrC-dRIAM':-’ ^ n íWpbírfdhéariñgahdreargumehtVwé'fihd'thatdhe triál-court®
abüsbd-its'' n discretion®When-it limited -t;he'd'e¿firñbhy;of -á: neürópsyChblogist ré|&díñg-hráih-'daiiiágé; SUffferedfby Máry'KtPSárióh'e'z/itó’ian allegedly the iplainti-ffy !(cid:127); nn (cid:127) n vg-a-í! r n > nljv>í<í:.'íí-)mSk automobile n aécid’eñt.'(cid:127)* n ' :c rein This-court, division, sitting originally majority held in a opinion that the trial court had not abused its discretion when it neuropsychologist’s testimony regarding plaintiff’s limited the alleged damage. majority panel of the held that the proof, as stated the offer of alternatives,
couched in
of which was no more than a
one
“possibility”
certainty requirements
and did not meet the
Service,
espoused
Trucking
in Hare v. Watts
State,
352 N.W.2d
Scott
and Lane v. State Farm Mut. Automobile Ins.
Neb. 396,
medical the of care and which included (cid:127) Bergan Mercy Hospital, treatment at Immanuel Medical Center, Clinic, Neurological as and Omaha as well records counselor, and her psychiatrist; Sanchez’ mental health obstetrician-gynecologist. Dr. Golden determined that Sanchez suffering pain syndrome. was from a chronic That means she pain problem had a more than months which had not for treatment, responded going to medical and that it “was not away.”
In ruling upon objection the be held that Dr. Golden would permitted pain plaintiff experiencing to that the was was injury tied to a soft-tissue in the received accident. permitted Plaintiff claims that Dr. Golden should have been following in the offer his as it is contained proof. picture of a presents client a clinical
[T]he [Sanchez] premorbid status somewhat histrionic individual whose marginal coping skills and that of an individual with April been resources. the accident of 1982there has Since well am significant decline in level of function as as exacerbation of her histrionic tendencies. this either and a post marginal previously in a pain to chronic
reaction organic affective disorder personality injury (around the orbital to mild subcortical brain such this. which can occur in accidents as firmly time to state at this . . of her the most of these causes is indeed clearly date from the time of pattern expected such accident as well as follow disorders, to choose between dysfunction type of mild subcortical brain [by] be type cannot itself which could cause this currently easily by objective tests which are identified clinically Although of the disorder available. denial, inability recognize the nature (especially the thought problems, primitive of her and the somewhat analysis patterns emotion) her associated with diagnosis, also-represent it can consistent with an intensification because of a traumatic woman stress disorder related to the accident itself and the chronic *3 physical pain which ensued from the accident. Dr. is question appeal
The narrow
on
is not whether
Golden
damage,
qualified
expert regarding
as an
brain
but whether the
excluding
testimony
judge
abused his discretion in
question.
particular
Dr. Golden oil the
issue in
Dispositive
question
of that
is whether Dr. Golden’s excluded
testimony
supply specialized knowledge
which would aid
understanding
determining
or in
fact
the evidence
(Reissue 1985).
in issue. Neb. Rev. Stat. 27-702
§
expert testimony within the
The admission or exclusion of
is
grounds
discretion of the trial court. To obtain reversal on the
evidence,
of the exclusion of
an abuse of
must be
discretion
See,
Rierden,
440,
Neb.
shown.
Lincoln East Bancshares v.
House,
(1987); Bay
225 Neb. Aetna Cas. & Co. Surety Nielsen, v. State Schenck, Neb. 523, 384 N.W.2d opinion
The trial found that to allow Dr. testimony cause of Sanchez’ behavioral testimony change j y speculate on the would be to invite a ur to expert. testify two prepared Dr. Golden was changes. explain plaintiff’s behavior causes existed injury, brain Both of these causes related to a traumatic in Marion v. compensable. both would be This court noted 457, 460, 222 Smelting Refining American & 366, 368-69 impossible reputable for a (1974), that “it is certainty and one doctor to with absolute that one cause certainty disability. cause alone is the reason for Absolute [a] required. diagnosis not not a science.” Medical that exact opinion Dr. Golden’s was based on facts ascertained interviews, tests, review, ultimately and a medical which in diagnosis expertise resulted based on the of this witness. Any questioning opinion go of the basis for Dr. Golden’s should weight credibility, admissibility. to its not to its against The trial court abused its discretion when it ruled receiving testimony. Dr.
Reversed and remanded for a new trial ON THE ISSUE OF DAMAGES. J., dissenting. Fahrnbruch, respectfully majority opinion I must dissent from rehearing. pointed original majority opinion As out in the my concurrence N. W.2d 420 (1988), prepared Golden was plaintiff’s] [the is either pain in and reaction to chronic organic previously marginal personality affective to mild subcortical disorder which can (around orbital in accidents (Emphasis was involved.
such as that in whi< the supplied.)
Dr. Golden’s would have also been *4 firmly that one at this time to state probable cause of her is indeed the most of these causes clearly date [plaintiff’s] problems follow the as well as time of the accident disorders, to choose expected between “probable cause” second
Under only theorizes that injury), he (mild subcortical accidents, there was a injury can not that the brain in the accident in certainty that it did occur degree of reasonable involved. which the finding that to allow Dr. correct
The trial court was the cause of be to invite behavioral Sanchez’ of Sanchez’ proximate on the speculate problems. be affirmed. ruling of the trial court should JJ., join in this dissent.
Boslaugh Caporale, corporation, Research, Inc. a Nebraska Selection appellant cross-appellee, v. Michael Murman et al., appelleesand cross-appellants. No. 87-169.